Opinion
I.D. # 0009019952.
Date Submitted: September 15, 2003.
Date Decided: October 29, 2003.
Upon Defendant's Motion for Post-conviction Relief-DENIED
Sean P. Lugg, Esquire, Department of Justice, Carvel State Office Building, 820 North French Street, Wilmington, Delaware 19801 for the State of Delaware.
Freddie L. Flonnory, SBI No. 234392, Delaware Correctional Center, 1181 Paddock Road, Smyrna, Delaware 19977, Defendant.
Kester I.H. Crosse, Esquire, Office of the Public Defender, Carvel State Office Building, 820 North French Street, Wilmington, Delaware 19801, trial counsel for the defendant.
OPINION
I. Introduction
On August 1, 2001, a jury convicted defendant Freddie Flonnory on one count of Assault in a Detention Center and one count of Reckless Burning. Flonnory has now filed this pro se Motion for Post-Conviction Relief. Defendant's motion is not procedurally barred because defendant asserts that all claims not previously raised were a result of ineffective assistance of counsel.
When analyzing a motion for post-conviction relief, the Court must first apply the procedural bars of Del. Super. Ct. Crim. R. 61(i) ("Rule 61") before considering the merits of the individual claims. Younger v. State, 580 A.2d 552, 554 (Del. 1990) [citations omitted]. Normally, any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is thereafter barred. Rule 61(i)(3). However, the procedural bars set forth in Rule 61(i)(1)-(4) may be overcome if the defendant establishes a colorable claim that there has been a "miscarriage of justice" under Rule 61(i)(5). A colorable claim of miscarriage of justice occurs when there is a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. This exception to the procedural bars is very narrow and is only applicable in very limited circumstances. A claim of ineffective counsel in violation of the Sixth Amendment to the United States Constitution, by its very nature, qualifies as such an exception. Under this exception, the defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." State v. Wilmer, I.D. No. 9603002509, 2003 Del. Super. LEXIS 80 at *12-*13 (Del.Super. Feb. 28, 2003, amended March 12, 2003), aff'd 827 A.2d 30 (Del. 2003).
Under the standard set forth in Strickland v. Washington, the defendant must establish two factors in order to prevail on a claim of ineffective assistance of counsel. First, the defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness. Second, he must show that counsel's actions were prejudicial to the defense, creating a reasonable probability that but for counsel's error, the result of the proceeding would have been different. The Strickland standard is highly demanding and, under the first prong of the test, there is a strong presumption that the representation was professionally reasonable. Under the second prong, the defendant must affirmatively prove prejudice.
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 694; Wilmer, 2003 Del. Super. LEXIS 80 at *14-*15.
Wilmer, 2003 Del. Super. LEXIS 80 at * 15, citing Stone v. State, 690 A.2d 924, 925 (Del. 1996); Flamer v. State, 585 A.2d 736, 753 (Del. 1990); see also, Albury v. State, 551 A.2d 53, 59 (Del. 1988).
Albury, 551 A.2d at 60, citing Strickland, 466 U.S. at 693.
Defendant's motion and the record clearly indicate that the instant motion is frivolous. As demonstrated below, defendant fails to satisfy either prong of the Strickland test. The defendant has not shown any actual prejudice or that his trial counsel's actions were unreasonable. Accordingly, defendant's Motion for Post-Conviction Relief is DENIED.
II. Defendant's Ineffective Assistance of Counsel
A. The Arrest
Defendant asserts that his arrest was illegal because the arrest warrant lacks a valid signature by a Judge, Master, Commissioner or Court Official. Defendant also claims that his trial counsel was ineffective for failing to challenge this allegedly defective warrant. There is no factual basis to support defendant's assertions. The signature line on the arrest warrant clearly shows the official stamp of the Justice of the Peace Court with a signature mark near its center. The long standing and well established practice in the Justice of the Peace Court is that arrest warrants are not stamped with that Court's seal unless and until the warrant is approved and signed by a judge. The Court takes judicial notice of this fact pursuant to D.R.E. 201. Furthermore, even if the signature is illegible, there is an approval code assigned to each Justice of the Peace which identifies the particular judge who signed the warrant. The Court also notes that nothing in Defendant's motion or the record in this case establishes in any way that the Justice of the Peace Court's standard practices governing the signing of an arrest warrant were not followed with respect to defendant's arrest. The Court finds that the arrest warrant in question is valid and thus trial counsel's "failure" to challenge the arrest was reasonable.
Defendant's Memorandum of Law [in Support of His] Motion for Post-Conviction Relief ("Def.'s Motion"), "Ground One" at 1.
For another example of when this Court has taken judicial notice of long standing and well established court procedures, see State v. Claudio, I.D. No. 87001256, 2001 Del. Super. LEXIS 510 (Del.Super. December 17, 2001) (taking judicial notice of the procedure for receiving grand jury indictments).
See Del. J. P. Crim. R. 4.
B. The Indictment
The defendant next asserts that the Indictment is insufficient and that his trial counsel was ineffective for failing to challenge this insufficiency. Specifically, defendant argues:
The indictment is insufficient as it simply alleges, the defendant: intentionally cause [sic] physical injury to Keith Mapps, a guard. It fails to allege what the injury was or even how the injury was sustained. The insufficiency of this indictment violated the defendant's 5th, 6th and 14th constitutional amendment rights, depriving him of his sixth amendment [right] to the effective assistance of counsel as well as his 14th amendment right to a fair trial. . . . the indictment fails to place defendant on notice as to what he will be called upon to defend against.
Def.'s Motion, "Ground Two" at 2.
The defendant's assertions have no merit. The indictment clearly indicates the specific statute that defendant allegedly violated by committing an assault in a detention facility (Title 11 Del. C. § 1254(a) of the Delaware Code). It also states: "Freddie Flonnory, on or about the 22nd day of September 2000, in the County of New Castle, State of Delaware, being confined to a detention facility did intentionally cause physical injury to Keith Mapps, a guard." A "valid indictment only need `contain a plain statement of the essential facts constituting the offense charged.'" The purpose of an indictment is to give a defendant notice, and the indictment at issue clearly refers to the applicable section of the Delaware Code and sets forth the offense the defendant allegedly committed.
Count I of the Indictment.
Stewart v. State, 829 A.2d 936 (Del. 2003).
Id.
See Id.
C. Self Defense Claim
Defendant asserts that trial counsel was ineffective for failing to present his self-defense claim to the jury. This claim, like the others, has no factual basis. The transcript reveals numerous instances where defendant's trial counsel either argued to the jury or elicited testimony about defendant's assertion that the alleged victim of the assault, Officer Keith Mapps, actually struck the Defendant first. In addition, defense counsel asserted a self-defense claim in his closing argument. Defense counsel requested that the Court read the jury instruction on justification and self-defense immediately after the charge on assault in a detention facility, and the Court did so. As for defendant's argument that trial counsel did not do enough to emphasize the self-defense claim, the Court is satisfied after reviewing the trial transcript that counsel's representation was professionally reasonable.
Def.'s Motion, "Ground Three" at 3-4.
For example, in his opening statement defense counsel states: "Mr. Flonnory will testify . . . that he was struck by the officer, that a handcuff was placed on one of his hands and he was then struck by the officer and then he retaliated." Tr. 7/31/01, Page 18 Lines 19-23.
See also, Tr. 7/31/01, Page 42 Line 23 to Page 43 Line 18 and Page 104 Lines 17-23 (defense counsel attempted to elicit testimony on cross examination that Defendant was hit first);
Tr. 8/1/01, Page 29 Line 10 to Page 30 Line 20 (on direct examination of witness Hilliard Winn, counsel elicits testimony that Officer Mapp punched Flonnory first);
Tr. 8/1/01, Page 64 Lines 12-18 and Page 66 Lines 9-17 (on direct examination counsel questions witness Peter Martinez, who testified through an interpreter that the guards grabbed Defendant's hair and started to hit him when he turned to be handcuffed);
Tr. 8/1/01, Page 82 Line 2 to Page 86 Line 17 (defense attorney asked questions to Defendant Flonnory which allowed him to present his version of the facts: that Officer Mapp hit first, that Flonnory did nothing to provoke the officer, and that Flonnory was cooperating until Mapp struck him in the back of the head which caused him to react);
Tr. 8/1/01, Page 95 Line 11 to Page 96 Line 3 (defense counsel on redirect examination provides a line of questioning which again reveals Defendant's assertion that Mapp "punched [him] in the back of [his] head."
See Tr. 8/1/01, Page 114 Lines 2-5 (defense counsel argues: "Every Person has a right to be secure in their person, and that's basically what is at issue here. To say that Mr. Flonnory was not justified in reacting the way he did, is ludicrous."); Id., Page 117 Line 14 to Page 118 Line 1; Id., Page 119 Line 21 to Page 120 Line 3; Id., Page 120 Lines 7 — 11 ("But when you break it down to the simple assault, there is provocation by the correctional officer which permits Mr. Flonnory to defend himself . . .").
See Tr. 8/1/01, Page 99 Line 22 to Page 101 Line 5.
See Tr. 8/1/01, Page 130 Line 21 to Page 132 Line 21.
We note that Defendant has not presented such an argument, instead he asserts that trial counsel completely failed to offer the self-defense claim. But the above excerpts from the trial transcript prove otherwise.
See Wilmer, 2003 Del. Super. LEXIS 80 at *15 ("The Strickland standard is highly demanding and under the first prong of the test, there is a `strong presumption that the representation was professionally reasonable.'"), citing Stone v. State, 690 A.2d 924, 925 (Del. 1996); Flamer v. State, 585 A.2d 736, 753 (Del. 1990); see also, Albury v. State, 551 A.2d 53, 59 (Del. 1988).
D. Prior Conviction
Defendant next argues that his trial counsel was ineffective for failing to object when the prosecution made prejudicial statements about defendant's prior murder conviction during closing arguments. This assertion is belied by the record. Defense counsel properly moved in limine early on in the trial to exclude any reference to the prior murder conviction during the trial. The transcript indicates that no one mentioned the defendant's prior conviction for murder in front of the jury. The prior murder conviction was raised during the sentencing phase and only after the jury had returned its guilty verdict and left the courtroom.
Def.'s Motion, "Ground Four" at 5.
See Tr. 7/31/01, Page 21-24.
The jury exited the courtroom for deliberations at 3:10 p.m. on August 1, 2001. See Tr. 8/1/01 Page 144. The jury returned at 4:14 p.m. with Guilty verdicts on two counts, Assault in a Detention Facility and Reckless Burning, and Not Guilty verdicts on the remaining counts. Tr. 8/1/01 Page 146. The jury was then excused and left the courtroom at 4:15 p.m. Tr. 8/1/01 Page 148. After the jury exited, the Court proceeded with sentencing. The first time that Flonnory's prior murder conviction was specifically discussed in open court was during the sentencing phase. Tr. 8/1/01, Page 150.
Flonnory admitted on direct examination that he had been previously convicted of multiple violent felonies including robbery, but no one delved into the details of these convictions and thus there was no mention of murder in front of the jury. Defense counsel asked Flonnory on direct about his prior convictions in such general terms as a result of the in limine discussion. During that discussion, the prosecutor argued that because Flonnory claimed self-defense, the State intended to use Flonnory's prior felony convictions to attack the defendant's credibility under D.R.E. 609. Even though Flonnory's conviction for First Degree Murder was on appeal at the time, this fact did not render the conviction inadmissible. Moreover, any prior robbery convictions would have been admissible as crimes of dishonesty under D.R.E. 609(a)(2) without having to apply the probative versus prejudice balancing test of D.R.E. 609(a)(1). Therefore, in order to thwart the prosecution's use of these convictions to attack the defendant's credibility, it appears that defense counsel decided for strategic reasons to quickly mention them on direct examination, without discussing murder specifically. Accordingly, Flonnory has failed to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." As a result, defendant cannot establish that his trial counsel's conduct was unreasonable or that any prejudice resulted.
See Tr. 8/1/01, Page 76 Line 7 to Page 77 Line 2 (direct examination of the defendant):
Q: Would you state your name again for us, please?
A: Freddy Flonnory.
Q: How old are you, Mr. Flonnory?
A: Twenty-two.
Q: And we can see from your attire that you are a resident of the Delaware Correctional Center?
A: Yes.
Q: And you are in the Super Maximum Unit?
A: Yes
Q: You have been convicted of a felony before, haven't you?
A: Yes.
Q: Multiple felonies?
A: Yes.
Q: Were some of them violent like robberies, et cetera?
A: Yes.
See Tr. 7/31/01, Page 21-24 for the in limine discussion. The Court also notes that a standard jury instruction was given which discussed the use of prior convictions for credibility purposes. That instruction reads as follows:
The fact that a witness has been convicted of a felony, if such be a fact, may be considered for you by [sic] only one purpose, namely in judging the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness' credibility, and it does not raise the suggestion that the witness has testified falsely. It is simply one of the circumstances that you may take into consideration in weighing the testimony of such a witness.
Tr. 8/1/01, Page 140 Lines 6 — 15.
See D.R.E. 609(e).
Robbery is considered a crime of dishonesty under D.R.E. 609(a)(2). Paskins v. State, No. 294, 1994, 1995 Del. LEXIS 104 (Del. Mar. 15, 1995).
Strickland, 466 U.S. at 689.
E. Defendant's Other Claims
"Ground Five" of defendant's motion cites some of the law applicable to ineffective assistance of counsel claims, but factually it only reiterates the other claims already listed in the motion — failure to challenge the arrest warrant and the indictment, failure to present a self-defense claim, and failure to object to statements made during closing argument. Each of these claims has been addressed above.
See Def.'s Motion, "Ground Five" at 7-8.
Defendant argues that "had counsel objected to improper and prejudicial closing comments, the issue could have been preserved on appeal. Counsel's failure. [sic] Thereafter, meaningful appellate review was effectively precluded when defense counsel abandoned the cause." Defendant's assertions lack any legal or factual basis that would support a request for a new trial. As noted above, any statements about defendant's prior murder conviction were not made in front of the jury. Trial counsel's "failure" to object during sentencing was appropriate and therefore reasonable. The defendant also claims that his trial attorney was ineffective in failing to communicate with defendant or keep him informed as to the status of his appeal. Defendant claims that his attorney never informed him that his appeal had been denied and the defendant had to write to the Supreme Court to obtain a copy of the decision. Defendant's direct appeal of his sentence and conviction was denied by the Supreme Court because that Court concluded that "Flonnory's appeal is wholly without merit and devoid of any arguably appealable issue." Even if counsel failed to timely inform defendant that his appeal had been dismissed by the Supreme Court, defendant fails to establish any prejudice as a result.
Def.'s Motion at 9.
Def.'s Motion, "Ground Six" at 9.
Flonnory v. State of Delaware, No. 411, 2001, Walsh, J. (Del. April 29, 2002) (Order) [a copy is filed in this case at Delaware Superior Court Docket No. 21] at 3.
For the foregoing reasons, defendant's Motion for Post-Conviction Relief is DENIED.
IT IS SO ORDERED.